Professional Documents
Culture Documents
9. Admitted.
10. Defendant is without sufficient knowledge to admit or deny paragraph
10.
11. Denied. BitTorrent requires intermediary websites to connect hosts to
recipients which are subject to DMCA take down notices.
12. Paragraph 12 is conclusory statement which does not necessitate a
response.
13. Paragraph 13 is conclusory statement which does not necessitate a
response.
14. Paragraph 14 is conclusory statement which does not necessitate a
response.
15. Paragraph 15 is conclusory statement which does not necessitate a
response.
16. Paragraph 16 is conclusory statement which does not necessitate a
response.
17. Defendant is without sufficient knowledge to admit or deny paragraph
17.
18. Defendant is without sufficient knowledge to admit or deny paragraph
18.
35. Unclean Hands Plaintiff, through its business partners, advertises its
videos as free to download and share. Plaintiff, through its business
partners, has posted over 250 of its videos and potentially re-distributed
over 133,000,000 times. Many of the videos Plaintiff distributes for free
via its business partners websites are the very same videos available via
BitTorrent. Plaintiff advertises its videos as free on four out of the five
most visited free adult websites in the world, exposing hundreds of
millions of visitors to the belief that Plaintiffs videos are free to
download and share. If any of the videos distributed by Plaintiffs
business partners were not authorized, it is knowable only to Plaintiff.
39. De Minimis Plaintiff, through its business partners, has authorized the
distribution, download, reproduction, performance, and sharing of its
copyrighted materials for free to hundreds of millions of individuals
around the world. Plaintiff receives no monetary compensation from the
free distribution websites other than free publicity for those who may
wish to join Plaintiffs subscription website. Plaintiff has alleged no
commercial infringement of its materials. The purported infringements
by Defendant caused no apparent or actual harm to Plaintiff. Plaintiff
can show no harm in what has already been authorized to be published
and distributed hundreds of millions of times for free.
Plaintiff has failed to mitigate damages by ensuring its videos are not
uploaded and distributed on websites which bear its trademarked name.
Plaintiff had actual or constructive knowledge of the videos posted at all
times relative.
42. Accord and Satisfaction Defendant did offer and Plaintiff did accept
Defendant as a subscriber, giving Defendant non-exclusive license to
copy and possess Plaintiffs purported copyrighted material.
Additionally, Plaintiff, through its business partners, did at the time of the
purported infringement give apparent or actual authority for anyone in
the world the distribute its works.
43. Injunctive Relief Plaintiff has not shown immediate or ongoing harm
and is therefore not entitled to injunctive relief. Plaintiff did grant
Defendant a license to copy and possess Plaintiffs purportedly
copyrighted materials.
COUNTERCLAIMS
Factual Background
44. Malibu Media, LLC., (hereinafter MM) is and was at all times relative,
a California limited liability company with its principal place of business
located in Los Angeles, California.
45. MMs primary business is the production and distribution of adult
pornographic videos doing business under the name X-Art.
46. MM distributes its video content through the combination of a
subscription based website owned and operated by MM, and through
third-party websites.
47.The third-party websites advertise themselves as free to view and
download. Each video appears on its own web-page with a button to
download and share.
48. Specifically, MM maintains relationships with the Pornhub Network and
Xhamster.com (hereinafter Free-sites). The Pornhub Network is
comprised of Pornhub.com, Youporn.com, Redtube.com, Tube8.com,
Spankwire.com, Extremetube.com, Thumbzilla.com, and PornMD.com
(Hereinafter Pornhub Network). It is reasonably believed that MM
maintains relationships with numerous additional free distribution
websites as well.
49. MM does not receive monetary compensation for its videos distributed
via the Free-sites, but instead receives market exposure.
50. At all times relative, MM has held itself out to be a partner and free
content provider on Pornhub.com, Youporn.com, Redtube.com, and
Xhamster.com. (Exhibit A, B, & D). MM maintains its X-Art
logo on Pornhub.com, Youporn.com, Xhamster.com, and on
Redtube.com stated:
The X-Art team definitely appreciates being part of Redtubes
Partner Program. Our amazing content and your surplus of Traffic
truly produces incredible results. Cheers to a prosperous
relationship!
-X-Art.com (Exhibit C)
51. Pornhub.com, is the most visited adult content website in the world, and
it is the 66th most visited commercial website in the world (55th most
visited in the U.S.)1. To put this in perspective, Pornhub.com has more
daily visitors that Pandora, Spotify, Hulu, Lowes, Expedia, or WebMD.
Pornhub.com even has a higher global ranking than Walmart.com
52. Xhamster.com is the 83rd most visited commercial site in the world,
followed by RedTube.com at 185th and YouPorn.com at 220th.
1
62. Not only do MMs business partners post the videos, making them
available for downloading and sharing, the Free-sites also actively
promote MMs videos by featuring the videos. For instance, MMs
video, Play Me, was featured on Pornhub.com and visited 729,423 times
in just one week. (Exhibit L). It is reasonably believed that this video
has been viewed, downloaded, and/or shared more times in one week
then MM has had paid subscribers since its formation.
63. Similarly, Elle Hearts Girls, was featured by Pornhub.com on two
separate occasions and visited 1,032,328 and 778,463 times respectively.
Exhibits M and N).
64. As previously noted, the uploaded video postings contain a pregenerated computer code which allow third-party users to re-publish the
videos on third-party downstream websites with ease. (Exhibit O
showing Sweet Awakenings, posted over a year ago, was featured a year
later, and also reposted on VideoXList.com).
65. Similarly, A Little Rain Must Fall, was posted on Spankwire.com on
March 4, 2013, and then re-published on Boysfood.com. (Exhibit P).
66. In addition to the videos posted by MM and/or un-affiliated third parties,
MMs business partners also post MMs content which has been
rebranded with third-party advertising, creating even greater confusion.
For instance, both Above the Air and One Show for Each have been
posted with advertising for a third-party website, HDZideo.com.
(Exhibits Q and R). It is unknown what relationship MM has with
HDZideo.com, however, the videos still contain the title and credits of
the video.
67. Also posted hundreds of times on the Free-sites are shorter X-Art clips
that contain advertising for third-party websites such as Lolly33.com and
Lolly18.com. (Exhibit T). These third-party websites link directly to
MMs subscription website and it can reasonably be inferred that MM
has authorized the clips distributions.
68. The Pornhub Network cross-promotes the posted videos across its
various websites, so any video posted on one Pornhub Network websites
may also appear on any other of the other Pornhub Network sites.
(Exhibit U which shows Pornhub.com also promoting content from
Tube8.com and Youporn.com).
69. Not only do MMs business partners post MMs videos, but they will
also recommend additional videos to viewers. For instance, a viewer of
California Dreams will also be directed towards MMs other videos,
Tiffanys Tight Ass as well as In for the Night. (Exhibit V).
70. Significantly, there is a crossover between the torrent websites and the
videos being distributed on the Free-sites. For instance, the description
for Deepest Desires is the exact same file name as the torrent file names.
(Exhibit W). It is unknown how many of the videos posted on the
Free-sites came directly from torrent sites, or, how many of the torrent
files came directly from the Free-sites.
71.In addition to the Pornhub Network and Xhamster.com, MM places its
trademarked logo and has uploaded its content to numerous other free
distribution websites.
72. MM also sponsors a link to Sex.com which allows third-party users to
pin videos and pictures from the Free-sites and other free distribution
websites to Sex.com for further distribution and sharing. (Exhibit X
showing MMs videos Double Tease, Czech Beauties, Tropical Fantasy,
One Fine Day, and Grow with Me).
73. In total, Defense has documented over 250 of MMs videos being posted
on its business partners websites with well over 133,000,000 potential
free downloads and redistributions of MMs videos. The actual number
of free viewings and downloads of MMs videos is most likely much,
much higher.
81.MM knew at all times relative that a simple Google search for X-Art
would lead users to the Free-sites as well as torrent websites. Indeed,
many search results put the Free-sites at a higher search result than MMs
own subscription web-site.
82. MM knew at all times relative that a Google search would retrieve
results for the Free-sites which advertise Plaintiffs content as Free to
download and share.
83. MM has uploaded numerous of its own full length videos to Free-sites
without copyright notices or watermarks.
84. MM knew at all times relative that the Free-sites offer hundreds of
MMs videos for download.
85. If any of the MM videos being distributed by the Free-sites were not
authorized by MM, only MM would have that knowledge. MM knew or
reasonably should have known that the viewer would have no knowledge
of its authorization causing great confusion as to express or implied
authorization to download and share the videos.
86. MM knew at all times relative that the MM content appearing on the
Free-sites and on the torrent sites were often one in the same.
87. At all times relative, MM knew the videos it or other third parties had
posted had been distributed for free hundreds of millions of times.
94. MM knew or reasonably should have known that individuals would rely
on plaintiffs business relationship with Free-sites, and the shear
abundance of its content uploaded to the Free-sites, as a public
announcement of abandonment of its copyrights, or at minimum, an
intent not to assert copyright claims for non-commercial use.
95. MM knew or reasonably should have known that individuals would rely
on the Free-sites encouragement to share the videos would constitute a
public announcement of abandonment of its copyrights, or at minimum,
an intent not to assert copyright claims for non-commercial use.
96. MM counts upon the misperception that it has knowingly and/or
intentionally created in order to build a for-profit business of suing
individuals who relied upon MMs conduct and public announcements.
97. MM does not send cease and desist letters which would weed out
inadvertent and innocent infringers from knowing and intentional
infringers.
98. MM knew and counted on the social stigma associated with viewing
and/or downloading of pornographic material.
99. MM knew and counted on that persons accused of downloading
pornographic material, whether legally or illegally, would experience
great embarrassment and emotional distress.
121. Mrs. Field, at all times relative, knew that she or one of her
employees, agents or representatives authorized and uploaded MMs full
length features onto the internet for distribution which remained on the
internet from two and a half to five years.
122. Mrs. Field, at all times relative, knew that many of the videos were
uploaded under a pseudonym.
123. Mrs. Field, at all times relative, maintained profile pages on several of
the Free-sites.
124. Mrs. Field, at all times relative, knew that some of the videos
uploaded by Plaintiff were posted without copyright notice.
125. Mrs. Field, at all times relative, knew that the business partners Freesites allowed third-party individuals to upload content to the Free-sites.
126. Mrs. Field, at all times relative knew that third-parties were uploading
MMs content to the Free-sites.
127. Mrs. Field, at all times relative knew that the Free-sites were acting
with actual or apparent authority to publish and make available the
videos for download and sharing.
128. Mrs. Field, at all times relative, knew that the Free-sites allowed and
encouraged direct downloads and sharing of the content, regardless if it
was directly authorized by MM.
129. Mrs. Field, at all times relative, knew that videos uploaded by thirdparty individuals would remain on the Free-sites unless or until MM
requested it to be removed.
130. Mrs. Field, at all times relative, knew that MMs business partners had
distributed MMs copyrighted materials to tens or hundreds of millions of
individuals around the world, free of charge or other restriction.
131. Mrs. Field, at all times relative, knew that displaying MMs
trademarked name, X-Art on the business partners Free-sites could or
did create an impression that MM was abandoning its copyright
protections, or at minimum, that it had no intent on asserting copyright
claims for non-commercial use.
132. Mrs. Field knew, or reasonably should have known, that someone
downloading a file via BitTorrent does not know of the actual content of
the file until it has completely downloaded.
133. Mrs. Field knew, or reasonably should have known, that someone
downloading a file via BitTorrent does not know if the actual content of
the file is that of videos Plaintiff has authorized to be distributed and
shared via MMs Free-site business partners, or if it is a pirated
version.
134. Mrs. Field knew at all times relative that the videos posted on the
Free-sites and on the torrent sites were often one-in-the-same and/or
otherwise indistinguishable from other files.
135. Mrs. Field admits that downloading via BitTorrent is faster than other
means of downloading a file via the Free-sites and/or her own
subscription website.
136. Mrs. Field knew or reasonably should have known that downloading
via BitTorrent is easier than other means of downloading a file.
137. Mrs. Field knew, or reasonably should have known, that individual
users would take MM at its advertised word and reasonably assume
free means free and share means share.
138. Despite having seeded some or all of MMs videos to the internet
itself, at the direction of Mrs. Field, she engaged legal counsels, Keith
Lipscomb, Esq., and Christopher Fiore, Esq., to sue thousands of
individuals for copyright infringement.
139. Despite knowing videos directly uploaded by MM to Free-sites and
potentially distributed to hundreds of millions of individuals, at the
direction of Mrs. Field, MM failed to disclose the business relationships
or the extent of Mrs. Fields own hand in the purported copyright
infringements.
145. Mrs. Fields also states that it is simply impossible to compete with
free without disclosing that at her direction, MM entered into multiple
business relationships with free distribution websites. (See declaration
of Colette Pelissier Field Document #7-1 at 13).
146. Mrs. Field directed her legal counsels, Christopher Fiore, Esq., and
Keith Lipscomb, Esq., to file her declaration despite knowing of its
falsity.
147. Mrs. Field directed her legal counsels, Christopher Fiore, Esq., and
Keith Lipscomb, Eqs., to file thousands of lawsuits on MMs behalf
despite knowing that her company had entered into business relationships
with free distribution websites.
148. Mrs. Field directed her legal counsels, Christopher Fiore, Esq., and
Keith Lipscomb, Eqs., to file thousands of lawsuits on MMs behalf
despite knowing that she was suing individuals for copyright
infringement on videos that she had personally uploaded to the Free-sites.
149. Mrs. Field directed her legal counsels, Christopher Fiore, Esq., and
Keith Lipscomb, Esq., to file thousands of lawsuits for personal gain
despite having no actual damages.
155. Mr. Field, acting through his local counsel, has filed the above
captioned action in this jurisdiction and availed himself of this Court.
156. Mr. Field is an active participant in the business operations of MM
and is a sophisticated business person who helps run MMs website.
157. Mr. Field, at all times relative, knew that MM and multiple Free-sites
entered into a business relationship.
158. Mr. Field, at all times relative, knew that MMs trademarked name,
X-Art was displayed on many of the Free-sites as content partners.
159. Mr. Field, at all times relative, knew that she or one of her employees,
agents or representatives authorized and uploaded MMs full length
features onto the internet for distribution which remained on the internet
form two and a half to five years.
160. Mr. Field, at all times relative, knew that many of the videos were
uploaded under a pseudonym.
161. Mr. Filed, at all times relative, knew that some of the videos uploaded
by Plaintiff were posted without copyright notice.
162. Mr. Field, at all times relative, knew that the business partners Freesites allowed third-party individuals to upload content to the Free-sites.
163. Mr. Field, at all times relative knew that third-parties were uploading
MMs content to the Free-sites.
164. Mr. Field, at all times relative knew that the Free-sites were acting
with actual or apparent authority.
165. Mr. Field, at all times relative, knew that the Free-sites allowed and
encouraged direct downloads and sharing of the content, regardless if it
was directly authorized by MM.
166. Mr. Field, at all times relative, knew that videos uploaded by thirdparty individuals would remain on the Free-sites unless or until MM
requested it to be removed.
167. Mr. Field, at all times relative, knew that MMs business partners had
distributed MMs copyrighted materials to tens or hundreds of millions of
individuals around the world, free of charge or other restriction.
168. Mr. Field, at all times relative, knew that displaying MMs
trademarked name, X-Art on the business partners Free-sites could or
did create an impression that MM was abandoning its copyright
protections, or at minimum, that it had no intent on asserting copyright
claims.
169. Mr. Field knew, or reasonably should have known, that someone
downloading a file via BitTorrent does not know of the actual content of
the file until it has completely downloaded.
170. Mr. Field knew, or reasonably should have known, that someone
downloading a file via BitTorrent does not know if the actual content of
the file is that of videos Plaintiff has authorized to be distributed and
shared via MMs Free-site business partners, or if it is a pirated
version.
171. Mr. Field knew at all times relative that the videos posted on the Freesites and on the torrent site were often one in the same.
172. Mr. Field knew, or reasonably should have known, that individual
users would take Plaintiff at its advertised word and reasonably assume
free means free and share means share.
173. Despite having seeded some or all of MMs videos to the internet
itself, at the direction of Mr. Field, MM sues thousands of individuals for
copyright infringement.
174. Despite knowing of videos directly uploaded by MM to the Free-sites
and potentially distributed to hundreds of millions of individuals, at the
direction of Mr. Field, MM fails to disclose the business relationships or
the extent of Plaintiffs own hand in the purported copyright
infringements.
175. Despite knowing MM has given actually or apparently authorization
to upload and distribute hundreds of its videos to hundreds of millions of
182. Mr. Field directed his legal counsels, Christopher Fiore Esq., and
Keith Lipscomb Esq., to file thousands of lawsuits for personal gain
despite having no actual damages.
183. Mr. Field directed his legal counsels, Christopher Fiore, Esq., and
Keith Lipscomb, Eqs., to file thousands of lawsuits on MMs behalf
despite knowing that he was suing individuals for copyright infringement
on videos that Mrs. Field had personally uploaded to the Free-sites.
184. Mr. Fields directions have caused harm to Defendant as well as
thousands of other victims to the extent of lost time, money, and
emotional distress.
185. Executive officers are liability for their actions when they direct,
participated in or co-operated in the tortuous act. Knuth v. Erie-Crawford Dairy Coop. Asso., 463 F.2d 470, 481 (3d Cir. 1972)
186. Due to his direction of these tortuous actions, Mr. Field is personally
liable for the harms caused.
194. Christopher Fiore, Esq., at all times relative, knew the actual or
apparent free distribution of MMs videos was material information.
195. Christopher Fiore, Esq., has acknowledge failure to disclose this
information in this and other similar cases in this jurisdiction as well as
other jurisdictions.
196. Christopher Fiore, Esq., has admitted to knowledge of this
information prior to the amending of the instant Complaint and service
upon Defendant.
197. Christopher Fiore, Esq., knew at all times relative he had a duty to
disclose adverse material information to this and other courts during exparte motions. While failure of disclosure, in-and-of-itself does not
necessitate civil liability, it does demonstrate his ongoing complicity in
the fraudulent enterprise.
198. Christopher Fiore, Esq., is an experienced litigator in copyright
infringement actions and knows that disclosure of the material
information could potentially adversely affect whether a judge would
grant an ex-parte motion for early discovery prior to a Rule 26(f)
conference.
199. Christopher Fiore, Esq., also knows that disclosing that his client is
the worlds largest advertiser of free content could affect damages
assessed and/or an award of attorney fees.
200. Christopher Fiore, Esq., has been complicit in and an active
participant in MMs fraudulent enterprise in order to receive pecuniary
gain.
201. Christopher Fiore, Esq., has conspired to commit fraud in this and
other actions filed by Mr. Fiore.
202. Christopher Fiore, Esq., conduct has caused harm to Defendant to the
extent of lost time, money, and embarrassment.
203. Christopher Fiore, Esq., is jointly liable with MM and the other thirdparty Defendants for the damages caused to Defendant.
218. MM, with the help of Christopher Fiore, Esq., and at the direction of
Brigham Field and Colette Pelissier Field, are essentially are running a
fraud and/or an extortion scheme, forcing victims to pay large settlements
in order to avoid extreme embarrassment, social stigma, and financial
distress.
219. MM, Christopher Fiore, Esq., Brigham Field and Colette Pelissier
Field have used interstate wire communications to conduct fraudulent
activities in violation of 18 U.S.C. 1343 (relating to wire fraud), 18
Pa.C.S.A 911 (relating to corrupt organizations), as well as violations
of 18 Pa.C.S.A 903 (relating to criminal conspiracy), 18 Pa.C.S.A
3923 (relating to Theft by extortion), and 18 Pa.C.S.A 4144 (relating to
securing execution of documents by deception).
220. Christopher Fiore, Esq., Brigham Field and Colette Field, share in the
profits of the fraudulent activity.
221. Christopher Fiore, Esq., Brigham Field and Colette Field, along with
Keith Lipscomb, did conspire and create an enterprise which violates 18
U.S.C. 1962(a) - (c).
222. The conspirators use proceeds from previous victims to fund future
operations.
223. The conspirators actions have cause direct harm to Defendant.
227. MM, through Colette Field and Brigham Field, did advertise their
content as free to download and share to hundreds of millions of people
around the world.
228. MM, through Colette Field and Brigham Field, had knowledge that
the advertisements were false and had no intent to honor said
advertisements. Instead, MM, through Colette Field and Brigham Field,
engaged in a campaign of suing individuals for non-commercial
infringement of their content.
229. MM, through Colette Field and Brigham Field, threatened or did
subpoena and confiscate thousands of individuals personal computers,
containing a great deal of personal and private information, causing great
embarrassment and disruption to peoples lives.
230. MM, through Colette Field and Brigham Field, threatened or did
depose thousands of individuals neighbors in order to cause extreme
embarrassment to defendants about private viewing of adult material.
231. MM, through Colette Field and Brigham Field, did invade the privacy
of thousands of individuals.
232. MM, through Colette Field and Brigham Field, did threaten or cause
defendants to spend large amounts of money in order to defend meritless
actions filed against them.
233. MM, through Colette Field and Brigham Field, did intentionally or
recklessly inflict emotional distress upon defendants in order to extract
large settlements far in excess of actual damages, if any.
234.
MM, Colette Field, Brigham Field, and Christopher Fiore, Esq., did
Respectfully submitted,
Dated: July 8, 2016
/s/ Aaron Brooks
Aaron Brooks PA# 207801
Attorney for the Defense
765 Beaver Branch Rd.
Pennsylvania Furnace, PA
16865
(814) 852-8264
ATB15@psu.edu